U.S. Department of Labor Freedom of Information Act Annual Report for Fiscal Year 2013

U.S. DEPARTMENT OF LABORFREEDOM OF INFORMATION ACT ANNUAL REPORTFOR FISCAL YEAR 2012October 1, 2012 through September 30, 2013

EXECUTIVE SUMMARY

The Department of Labor (DOL) has a decentralized Freedom of Information Act (FOIA) program in which each component agency responds directly to FOIA requests implicating its programs and activities. This allows for more accurate, complete, and timely responses to the public. While this report reflects FOIA activities at the Departmental level, it also distinguishes the volume and timeliness of each DOL component as it carries out its respective responsibilities under the FOIA.

Although FOIA processes at DOL are decentralized, departmental oversight is provided by the Office of Information Services (OIS), which operates under the supervision of the Solicitor of Labor, the Department's Chief FOIA Officer. OIS provides agency-wide leadership and guidance to ensure compliance with FOIA, particularly to increase the quality and timeliness of FOIA responses; reduce the backlog of pending FOIA requests; and review the effectiveness of each agency's FOIA processes in order to benchmark best practices, and make recommendations for programmatic improvements. Additional information about the Department's FOIA program is available online at http://www.dol.gov/dol/foia/.

The Department received a total of 18,755 initial requests for records during Fiscal Year 2013, a slight increase from 18,560 received in FY2012. The Department processed 19,175 initial FOIA requests in FY13, a slight decrease from the 19,224 processed in FY2012. At year's end, total requests in "backlog" status (meaning not processed within statutory time limits) had decreased from 740 at the end of FY2012 to 620 at the end of FY2013

As explained in the FY2012 Annual FOIA report, DOL conducted an audit of data in the Department's centralized FOIA tracking database, the Secretary's Information Management System for FOIA or "SIMS-FOIA" to ensure complete processing of FOIA requests received by the Department as well as to obtain the most accurate data for FOIA reporting purposes. As part of this audit in FY2012, we located a large number of records that had been improperly listed in the FOIA request system with a pending "Action Required" or "AR" code. When records are in an "AR" status, SIMS-FOIA does not track them for timeliness or any other processing milestone. An early review of our progress to reconcile the data indicated that the FY2012 efforts were successful. However, as we began preparing data for the current report, we located an additional 191 requests that remained in "AR" status at the close of FY2012, meaning requests were received by DOL in FY2012, but were not converted for processing and tracking purposes until after the close of the fiscal year. Since SIMS-FOIA records that are in "AR" status are not included in the tracking system's data collections, the addition of these 191 records to the FY2013 Annual Report means that the number of requests pending as of the start of FY2013 will not reconcile back to the number of requests pending as of the end of FY2012. Specifically, in FY2012 DOL reported 1,475 FOIA requests pending at the end of the fiscal year. This year, DOL is reporting 1,666 requests pending at the start of FY2013. The difference between these numbers represents the 191 requests discovered as a part of our continuing oversight of the data audit we began in FY2012. This report incorporates a footnote in Section V. (A.) to reconcile that difference. These additional requests do not impact backlog numbers for FY2012, nor result in differences in other parts of the report. Footnotes have been inserted where appropriate to address this issue.

C. You may obtain a paper copy of this report by visiting the DOL website or by contacting OIS using the information above.

II. How to Make a FOIA Request.

The Department of Labor is organized into divisions and agencies often referred to as components. Each component processes its own FOIA requests. Therefore, a request will receive the fastest possible response if it is addressed directly to the disclosure officer for the component that a requester believes has the records.

The DOL "Guide to Submitting a Request Under FOIA" provides general information about the FOIA program at DOL and provides basic information on how to submit a FOIA request. The Guide also contains links to the DOL agency components in both the national and regional offices, a brief description of expected response times and reasons why some requests cannot be granted by DOL. This Guide is available on DOL's website at http://www.dol.gov/dol/foia/guide6.htm.

Requesters who cannot determine the proper disclosure officer to whom a request should be addressed may direct the request to the Office of Information Services (OIS), Office of the Solicitor, Division of Management and Administrative Legal Services, 200 Constitution Avenue, N.W., Room N-2420, Washington, D.C. 20210, by e-mail to foiarequests@dol.gov or by fax to 202-693-5389.

A. The following list contains the names, addresses, and telephone numbers of the individual agency components and offices in the national and regional offices of the Department of Labor. The disclosure officer for each component is responsible for making records in the custody of that component available for inspection and copying, in accordance with the provisions of the FOIA. Unless otherwise specified, the mailing address for the following national office components is as follows:

U.S. Department of Labor1111 Third AvenueSeattle, Washington 98101-3212(415) 975-4057(For Wage and Hour Division: Contact San Francisco)

B. Agency response time.

The agency's response time generally ranges from one to forty-eight days. Complex requests usually take more time.

C. Why some requests are not granted.

A FOIA request can be made for any agency record. This does not mean, however, that the Labor Department will disclose every record sought. There are statutory exemptions that authorize the withholding of certain information. In addition, the agency cannot comply with a FOIA request if there are no responsive records. Further, FOIA does not require agencies to do research for the requester, to analyze data, to answer questions, or to create records in order to respond to a FOIA request.

a. Administrative Appeal – a request to a federal agency asking that it review at a higher administrative level a FOIA determination made by the agency at the initial request level.

b. Average Number – the number obtained by dividing the sum of a group of numbers by the quantity of numbers in the group. For example, of 3, 7, and 14, the average number is 8.

c. Backlog – the number of requests or administrative appeals that are pending at an agency at the end of the fiscal year that are beyond the statutory time period for a response.

d. Component – for agencies that process requests on a decentralized basis, a “component” is an entity, also sometimes referred to as an Office, Division, Bureau, Center, or Directorate, within the agency that processes FOIA requests. The FOIA now requires that agencies include in their Annual FOIA Report data for both the agency overall and for each principal component of the agency.

e. Consultation – the procedure whereby the agency responding to a FOIA request first forwards a record to another agency for its review because that other agency has an interest in the document. Once the agency in receipt of the consultation finishes its review of the record, it responds back to the agency that forwarded.

f. Exemption 3 Statute – a federal statute that exempts information from disclosure and which the agency relies on to withhold information under subsection (b)(3) of the FOIA.

g. FOIA Request – a FOIA request is generally a request to a federal agency for access to records concerning another person (i.e., a “third-party” request), or concerning an organization, or a particular topic of interest. FOIA requests also include requests made by requesters seeking records concerning themselves (i.e., “first-party” requests) when those requesters are not subject to the Privacy Act, such as non-U.S. citizens. Moreover, because all first-party requesters should be afforded the benefit of both the access provisions of the FOIA as well as those of the Privacy Act, FOIA requests also include any first-party requests where an agency determines that it must search beyond its Privacy Act “systems of records” or where a Privacy Act exemption applies, and the agency looks to FOIA to afford the greatest possible access. All requests which require the agency to utilize the FOIA in responding to the requester are included in this Report. Additionally, a FOIA request includes records referred to the agency for processing and direct response to the requester. It does not, however, include records for which the agency has received a consultation from another agency. (Consultations are reported separately in Section XII of this Report.)

h. Full Grant – an agency decision to disclose all records in full in response to a FOIA request.

i. Full Denial – an agency decision not to release any records in response to a FOIA request because the records are exempt in their entireties under one or more of the FOIA exemptions, or because of a procedural reason, such as when no records could be located.

j. Median Number – the middle, not average, number. For example, of 3, 7, and 14, the median number is 7.

k. Multi-Track Processing – a system in which simple requests requiring relatively minimal review are placed in one processing track and more voluminous and complex requests are placed in one or more other tracks. Requests granted expedited processing are placed in yet another track. Requests in each track are processed on a first in/first out basis.

i. Expedited Processing – an agency will process a FOIA request on an expedited basis when a requester satisfies the requirements for expedited processing as set forth in the statute and in agency regulations.

ii. Simple Request – a FOIA request that an agency using multi-track processing places in its fastest (non-expedited) track based on the low volume and/or simplicity of the records requested.

iii. Complex Request – a FOIA request that an agency using multi- track processing places in a slower track based on the high volume and/or complexity of the records requested.

l. Partial Grant/Partial Denial – in response to a FOIA request, an agency decision to disclose portions of the records and to withhold other portions that are exempt under the FOIA, or to otherwise deny a portion of the request for a procedural reason.

m. Pending Request or Pending Administrative Appeal – a request or administrative appeal for which an agency has not taken final action in all respects.

n. Perfected Request – a request for records which reasonably describes such records and is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed.

o. Processed Request or Processed Administrative Appeal – a request or administrative appeal for which an agency has taken final action in all respects.

p. Range in Number of Days – the lowest and highest number of days to process requests or administrative appeals.

q. Time Limits – the time period in the statute for an agency to respond to a FOIA request (ordinarily twenty working days from receipt of a perfected FOIA request).

c. Exemption 3: information that is prohibited from disclosure by another federal law

d. Exemption 4: trade secrets and other confidential business information

e. Exemption 5: inter-agency or intra-agency communications that are protected by legal privileges

f. Exemption 6: information involving matters of personal privacy

g. Exemption 7: records or information compiled for law enforcement purposes, to the extent that the production of those records (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, or (F) could reasonably be expected to endanger the life or physical safety of any individual

DOL was able to achieve a substantial drop in backlogged initial requests, despite having added to the data 191 pending requests that had not, but should have, been included in the FY2012 Annual FOIA report as discussed in the Executive Summary. Whereas all of DOL had 740 backlogged requests at the end of FY2012 (as indicated by the updated data), by the end of FY2013, we were still able to achieve an overall reduction of 19% in the agency’s backlog. This is attributed to the continuing oversight of the departmental management of the FOIA program, the hard work of DOL’s FOIA staff, consistent monitoring of FOIA related performance measures, and sustained effort toward backlog reduction throughout the Department’s 23 FOIA components.

DOL experienced an increase from 139 backlogged administrative appeals pending at the end of FY2012, up to 183 backlogged pending as of the end of FY2013. This is attributed to a substantial increase among the number of incoming FOIA appeals received, and a decrease in the number of staff available to address FOIA appeals.

E. Comparison of Numbers of Administrative Appeals from Previous and Current Annual Report – Appeals Received, Processed, and Backlogged.

Agency

NUMBER OF APPEALS RECEIVED

NUMBER OF APPEALS PROCESSED

# Received During Fiscal Year From Last Year's Annual Report

# Received During Fiscal Year From Current Annual Report

# Processed During Fiscal Year from Last Year's Annual Report

# Processed During Fiscal Year From Current Annual Report

OSHA

129

118

109

103

OFCCP

12

10

10

6

OLMS

8

6

4

9

OWCP

115

210

98

179

WHD

42

24

37

22

MSHA

26

9

25

8

EBSA

7

11

6

4

ETA

55

44

49

40

OASAM

12

11

10

7

ALJ

1

1

2

1

VETS

1

12

1

9

OIG

2

2

1

2

BLS

1

2

0

2

Adj Bds

0

1

0

1

WB

0

0

0

0

ODEP

0

0

0

0

ASP

0

0

0

0

OCIA

0

0

0

0

ILAB

0

0

0

0

CFO

0

0

0

0

OPA

0

0

0

0

SOL

3

3

2

0

OSEC

0

0

0

0

EXEC SEC

0

0

0

0

DOL Overall

414

464

354

393

BACKLOG APPEALS COMPARISONS

Agency

# of Backlogged Appeals as of End of the Fiscal Year from Previous Annual Report

# of Backlogged Appeals as of End of the Fiscal Year from Current Annual Report

OSHA

45

48

OFCCP

4

6

OLMS

6

4

OWCP

27

57

WHD

14

12

MSHA

11

14

EBSA

2

8

ETA

13

14

OASAM

8

10

ALJ

1

0

VETS

4

6

OIG

2

4

BLS

1

0

Adj Bds

0

0

WB

0

0

ODEP

0

0

ASP

0

0

OCIA

0

0

ILAB

0

0

CFO

0

0

OPA

0

0

SOL

1

3

OSEC

0

0

EXEC SEC

0

0

DOL Overall

139

183

F. Discussion of Other FOIA Activities

As a part of the overall improvement of DOL’s decentralized FOIA program, under direction of the Chief FOIA Officer, OIS continues to promote initiatives that are aimed at improving the FOIA administrative processes across DOL. The Department continues to work towards: improved customer service to our internal and external customers by providing clear and consistent FOIA responses; increased transparency by continuing to make discretionary disclosures of information where there is no foreseeable harm; and expanding DOL affirmative disclosures through the agency website and other mechanisms. DOL has also established robust process measures to closely monitor the timeliness of FOIA processing and backlog reduction.

As discussed in the Executive Summary, during FY2013, we continued to analyze and review the data that resulted from our audit of the Department’s FOIA data and located an additional number of FOIA requests that had not been properly logged into the FOIA tracking system. While this ongoing oversight did change the number of pending FOIA requests reported at the end of FY2012, we believe that this review reaffirms our commitment to providing and publishing the most accurate data for the purposes of FOIA reporting, ensured that all FOIA requests received by the Department are answered as accurately and completely as possible and gave an opportunity for OIS to continue addressing data reconciliation issues and make it a part of our regularly scheduled program reviews. In light of all this, the Department still managed to process more requests than it received, close all of the 10 oldest FOIA requests reported in the FY2012 report and exceed the required goals for backlog reduction.

Signed at Washington, D.C. this 31st day of January 2014.

___signed_______M. Patricia SmithChief FOIA Officer

Footnotes

[1] As noted above in the Executive Summary, during this fiscal year DOL, in its continuing oversight of the data audit initiated in FY2012, located 191 FOIA requests that were received during the fiscal year but were not converted for processing and tracking purposes until after the close of the fiscal year. Specifically, in FY2012 DOL reported 1,475 FOIA requests pending at the end of the fiscal year. This year, DOL is reporting 1,666 requests pending at the start of FY2013. The difference between these numbers represents the 191 requests discovered as a part of our continuing oversight of the data audit we began in FY2012.

[2] Some work day ranges reported appear to be out of sequence based on the date of the receipt of the request. However, this is attributed to requests that have been "tolled" for clarification or to resolve fee matters consistent with the provisions of the statute.

[3] In the FY2012 Annual FOIA Report, DOL reported this number as 735 backlogged requests. That number was tabulated incorrectly in the human readable format of the report published to our webpage. We are correcting that number here to report 740 requests.